RULE 28
CASES INVOLVING ALLEGATIONS OF MENTAL OR
PHYSICAL INCAPACITY AND/OR THE INABILITY TO
PARTICIPATE IN A DISCIPLINARY INVESTIGATION OR ASSIST
IN THE DEFENSE OF FORMAL PROCEEDINGS

(a) Initiation of an Incapacity Proceeding or a Proceeding Involving the Inability to Participate in a Disciplinary Investigation or to Assist in the Defense of Formal Disciplinary Proceedings. An incapacity proceeding or a proceeding to determine whether a lawyer is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings may be initiated:

(1) if a lawyer alleges an inability to participate in the disciplinary investigation or to assist in the defense of formal proceedings due to a mental or physical condition;

(2) if information comes to disciplinary counsel's attention by complaint or from another source that the lawyer suffers from an incapacity or is incapable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings due to a mental or physical condition; or

(3) by an order of an investigative panel, a hearing panel, or the Supreme Court.

(b) Proceedings to Determine Incapacity and/or the Inability to Participate in a Disciplinary Investigation or to Assist in the Defense of Formal Proceedings Generally. All proceedings under this rule shall be conducted in accordance with the procedures for disciplinary proceedings, except:

(1) Incapacity Proceedings. The purpose of incapacity proceedings shall be to determine whether the lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law.

(2) Proceedings Involving the Inability to Participate in a Disciplinary Investigation or Assist in the Defense of Formal Proceedings. The purpose of such proceedings shall be to determine whether the lawyer suffers from a physical or mental condition that renders the lawyer unable to participate in a disciplinary investigation or assist in the defense of formal proceedings.

(A) The Commission shall notify the Supreme Court of the initiation of the proceedings. The Supreme Court shall immediately transfer the lawyer to incapacity inactive status pending a determination by the Supreme Court of whether the lawyer is capable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings pursuant to this rule.

(B) Any pending formal proceedings based on misconduct by the lawyer shall be temporarily stayed pending a determination of whether the lawyer is capable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings under this rule. However, any investigation of the disciplinary complaint may continue.

(3) Initiation of Proceedings. Upon initiation of proceedings under this rule, the Commission chair, vice chair, or chair's designee shall be assigned as the hearing officer for all matters related to the proceedings, including making appointments and conducting a hearing pursuant to this rule.

(A) The hearing officer, if he or she deems appropriate, may appoint counsel for the lawyer, if the lawyer is without representation, or appoint a guardian ad litem for the lawyer.

(B) The hearing officer shall designate one or more qualified medical, psychiatric, or psychological experts to examine the lawyer prior to the hearing on the matter. The hearing officer may designate an expert agreed upon by disciplinary counsel and the lawyer.

(C) The lawyer shall submit to an examination by the expert(s) within 30 days of receipt of notice of designation of the expert(s). The lawyer shall cooperate with the expert(s) with regard to scheduling and participating in the examination. If the lawyer fails to attend or participate in the examination, the hearing officer shall issue an order terminating proceedings under this rule and, if disciplinary proceedings were interrupted by a claim that the lawyer was unable to participate in a disciplinary investigation or assist in the defense of formal proceedings, the interrupted disciplinary proceedings shall resume.

(D) The expert or experts shall report the results of the examination(s) to the hearing officer and the parties.

(4) Stipulations.

(A) Within 20 days of receipt of the examination report(s) of the expert or experts designated by the hearing officer, disciplinary counsel and the lawyer may agree upon proposed findings of fact, conclusions, and recommended disposition. The stipulation shall be submitted, without the necessity of a hearing, to the hearing officer for a recommendation to the Supreme Court for approval or rejection. The final decision on the recommendation shall be made by the Supreme Court.

(B) If the Supreme Court accepts a stipulation, it shall enter an order in accordance with its terms. If the stipulation is rejected by the Supreme Court, it shall be withdrawn and cannot be used against the lawyer in any proceedings. If the Supreme Court rejects the stipulation, the Supreme Court shall order that the hearing proceed.

(5) Hearing. Unless a stipulation is submitted by the parties, the hearing officer shall schedule a hearing and notify disciplinary counsel and the lawyer of the date, time, and place of the hearing. Within 30 days of the filing of the transcript of the hearing, the hearing officer shall file with the Supreme Court the record of the proceeding and a report setting forth findings of fact, a conclusion regarding incapacity and/or the ability of the lawyer to participate in a disciplinary investigation or assist in the defense of formal proceedings, and a recommended disposition of the proceedings.

(6) Review by the Supreme Court.

(A) If the Supreme Court determines that the lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law, it may enter any order appropriate to the circumstances, the nature of the incapacity, and probable length of the period of incapacity, including:

(i) transferring the lawyer to incapacity inactive status; or

(ii) placing restrictions or conditions on the lawyer, to include limiting the lawyer's practice of law or requiring the lawyer to undergo appropriate treatment;

(B) If the Supreme Court determines the lawyer does not suffer from a physical or mental condition that adversely affects the lawyer's ability to practice law, the Court shall vacate any order transferring the lawyer to incapacity inactive status and enter any other order as appropriate to the circumstances.

(C) If the Supreme Court determines that the lawyer is incapable of participating in the disciplinary investigation or assisting in the defense of formal proceedings due to a physical or mental condition, any formal disciplinary proceedings based on misconduct shall be deferred. Any investigation of the disciplinary complaint may continue. The lawyer shall remain on incapacity inactive status until the Supreme Court grants a petition for reinstatement to active status as a lawyer. If the Supreme Court determines that a petition for reinstatement to active status should be granted, the interrupted disciplinary proceedings shall resume.

(D) If the Supreme Court determines that the lawyer is capable of participating in a disciplinary investigation or assisting in the defense of formal proceedings, the interrupted disciplinary proceedings based on misconduct shall resume. The lawyer shall, however, be retained on incapacity inactive status pending completion of the disciplinary proceedings.

(7) Costs. In its discretion, the Supreme Court may direct that the costs incurred by the Commission and the Office of Disciplinary Counsel related to proceedings under this rule be paid by the lawyer.

(8) Waiver of Privilege. The raising of a mental or physical condition as a defense to, or in mitigation of, formal charges or the raising of a claim of inability to participate in a disciplinary investigation or assist in the defense of formal proceedings by the lawyer constitutes a waiver of any medical privilege.

(9)Confidentiality. All of the proceedings, information, and documents related to the proceedings shall be confidential except that an order transferring a lawyer to incapacity inactive status or reinstating a lawyer to active status following transfer to incapacity inactive status shall be public. Such an order shall not, however, disclose the nature of the lawyer's condition. All other orders issued in the proceeding shall be confidential.

(c) Involuntary Commitment or Adjudication of Incompetency. If a lawyer has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order after a judicial hearing, the Supreme Court, upon receipt of a certified copy of the order, shall enter an order immediately transferring the lawyer to incapacity inactive status. A copy of the order shall be served, in the manner the Supreme Court shall direct, upon the lawyer, the lawyer's guardian, or the director of the institution to which the lawyer has been committed. Unless the Supreme Court determines that it is appropriate to do so, an order transferring a lawyer to incapacity inactive status shall not disclose the nature of the incapacity.

(d)Other Incapacity. Upon receipt of sufficient evidence demonstrating that a lawyer poses a substantial threat of serious harm to the public or to the administration of justice, the Supreme Court may transfer the lawyer to incapacity inactive status pending a final determination in any proceeding under these rules. Unless the Supreme Court determines that it is appropriate to do so, an order transferring a lawyer to incapacity inactive status shall not disclose the nature of the incapacity.

(e) Motion for Reconsideration. A lawyer transferred to incapacity inactive status pursuant to Rule 28(d) may apply to the Supreme Court for reconsideration of the order. A copy of the motion shall be filed with the Commission and served on the disciplinary counsel.

(f) Agreement. Nothing within this rule shall prohibit disciplinary counsel and a lawyer from agreeing that the lawyer suffers from an incapacity or is unable to participate in a disciplinary investigation or to assist in the defense of formal proceedings due to a mental or physical condition. If disciplinary counsel and a lawyer so agree, the lawyer and disciplinary counsel may waive the proceedings under this rule by submitting to the Supreme Court a consent to transfer the lawyer to incapacity inactive status. If the lawyer is placed on incapacity inactive status because the lawyer is incapable of participating in a disciplinary investigation or assisting in the defense of formal proceedings, formal proceedings will be deferred in accordance with Rule 28(b)(6)(C).

(g) Reinstatement From Incapacity Inactive Status.

(1) Generally. No lawyer transferred to incapacity inactive status may resume active status except by order of the Supreme Court.

(2) Petition. Any lawyer transferred to incapacity inactive status shall be entitled to petition for transfer to active status once a year or at whatever shorter intervals the Supreme Court may direct in the order transferring the lawyer to incapacity inactive status or any modifications thereof. The lawyer shall serve a copy of the petition on disciplinary counsel, and shall file 10 copies of the petition with the Clerk of the Supreme Court. The copies filed with the Clerk shall be accompanied by proof of service showing service on disciplinary counsel.

(3) Examination. Upon the filing of a petition for transfer to active status, the Supreme Court may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of the lawyer by qualified medical or psychological experts designated by the Supreme Court. In its discretion, the Supreme Court may direct that the expense of the examination be paid by the lawyer.

(4) Required Disclosure. With the filing of a petition for reinstatement to active status, the lawyer shall be required to disclose the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which the lawyer has been examined or treated since the transfer to incapacity inactive status. The lawyer shall furnish to the Supreme Court written consent to the release of information and records relating to the incapacity if requested by the Supreme Court or court-appointed medical or psychological experts.

(5) Learning in the Law; Examinations and Training. The Supreme Court may also direct that the lawyer establish proof of competency and learning in the law, which may include a requirement to successfully complete the examinations and training required by Rule 402(c)(5), (6), and (8), SCACR.

(6) Granting of Petition for Transfer to Active Status. The Supreme Court shall grant the petition for transfer to active status upon a showing by clear and convincing evidence that the incapacity has been removed.

(7) Judicial Declaration of Competency. If a lawyer transferred to incapacity inactive status on the basis of a judicial determination of incompetence has been declared to be competent, the Supreme Court may dispense with further evidence that the incapacity to practice law has been removed and may immediately direct reinstatement to active status.